Friday, August 11, 2017

Trump and North Korea: Where is Congress?

By Eric Segall

Donald Trump
might be the last person on the planet I would trust with making reasonable
decisions concerning what to do about North Korea's nuclear capability. Having
said that, we shouldn't trust any President with the unilateral power to commit a
non-emergency, no-need-for secrecy, act of war without congressional consent.
The founding fathers wanted to separate the war declaring function from the war
fighting function, yet here we are in a world where the President can unilaterally start a war. Congress must act, and act now.

Article I
Section 8 of the United States Constitution gives Congress the power to declare
War. Alexander Hamilton explained
that the "Congress shall have the power to declare war; the plain meaning
of which is, that it is the peculiar and exclusive duty of Congress, when the
nation is at peace, to change that state into a state of war." In a letter
to Thomas Jefferson in 1798, James Madison wrote that the “constitution
supposes, what the History of all Governments demonstrates, that the Executive
is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested
the question of war to the Legislature." And founding father James Wilson said that the new
Constitution “will not hurry us into war; it is calculated to guard against
it. It will not be in the power of a
single man, or a single body of men, to involve us in such distress; for the
important power of declaring war is vested in the legislature at large.”

There are
many provisions of the Constitution that have contested histories and which are
difficult to apply to modern circumstances. The power to declare War in Article
I, Section 8, is not one of those provisions. Absent an imminent attack on the
United States, or perhaps an important need for secrecy, it is
Congress, not the President, who under our supreme law has the power to declare
war.

Unfortunately,
starting with the Korean War and then Viet Nam, American Presidents have used
strong military force amounting to acts of war without Congress formally
declaring war (although in both instances Congress did ultimately fund the wars, thereby giving tacit approval). In 1973, in the wake of the Viet Nam War, Congress
passed, over President Nixon’s veto, the War Powers Resolution. This law confusingly
says the President can introduce American troops into hostilities only after congressional approval or an
attack on the United States, but also requires the President to remove such
troops after sixty days if Congress has not given its approval, suggesting the
former restriction may not be a restriction at all. In any event, the War
Powers Resolution has been completely ineffective in separating the war deciding function from the war making function because Congress
has consistently lacked the will to enforce it.

Sadly,
President Obama made important decisions and arguments that further diluted
Article I, Section 8, and the important separation-of-powers ideas behind the
Constitution’s assignment of the war declaring function to Congress. He made
those decisions despite having said,
before he assumed Office, that "The President does not have power under
the Constitution to unilaterally authorize a military attack in a situation
that does not involve stopping an actual or imminent threat to the
nation."

President
Obama often acted
without congressional consent when using military force. For example, he didn’t
have approval to lead a NATO coalition against Libyan dictator Muammar Gaddafi in 2011, nor did he have approval when he ordered airstrikes against Islamic
State fighters in Iraq and Syria. The President argued that those strikes were
authorized under a law passed in the wake of 9/11 giving the President
authority to use whatever means were necessary to capture the terrorists responsible
for 9/11, but the Islamic State did not exist at the time. President Obama also argued that bombing Libya, without troops on the ground, did not
constitute “hostilities” under the War Powers Resolution. That argument was
derided by just about everyone. For example, a former CIA Director under
President George W. Bush said
the following: “Using armed Predator drones against Libyan targets with the
occasional defense suppression strike from manned aircraft, all the while being
on call for more robust missions and with U.S. servicemen collecting imminent
danger pay ... all that certainly feels like hostilities.”

Professor
Bruce Ackerman, a liberal constitutional law scholar at Yale, argued
in the New York Times that Obama’s decisions regarding the use of force “mark[ed]
a decisive break in the American constitutional tradition,” and amounted to “imperial
hubris.” Other commentators disagreed,
arguing that Obama’s decisions simply reflected well-developed “constitutional traditions.”

President
Donald Trump has made sever threats against North Korea, promising “fire and
fury” and warning
that "North Korea better get their act together, or they are going to be
in trouble like few nations have ever been in trouble.” But so far there have
been no attacks against the United States, and obviously Trump does not think
secrecy is necessary for attacking North Korea. Where is Congress? There is no
reason why there can’t be a serious discussion between the President and Congress, whether in public (even on the golf course if he prefers) or behind
closed doors, about whether to actually attack North Korea.

There has
never been a better time for Congress to reassert its authority to declare war
before a President instigates one. The Congress and the President are of the
same political party, so there can’t be charges of partisan politics interfering
with important security decisions. President Trump’s first six months have been
riddled in scandal like no other President, and he has absolutely no foreign
policy experience, having never worked in public office before assuming the
Presidency. I am not a huge fan of Paul Ryan, Mitch McConnell, or for that
matter the Congress as a whole. But, now more than ever, it is time to heed the
stern warnings of the founding fathers and divide the war declaring function from
the Commandeer-in-Chief Power before it is too late. Where is Congress?

4 comments:

Just Security and Take Care blogs have recent posts spelled out why attacking North Korea without a congressional authorization would be unconstitutional [gather there is an extreme situation loophole here in case of a sudden attack or clear evidence NK is actually going to attack Guam in fifteen minutes or whatever]. The discussions cover just what "war" entails in a Constitution sense.

Marty Lederman also references his long article from the Bush years that argues there is clear history and power for Congress to retrain the commander-in-chief power. This would include restricting usage of types of weapons, which also is at times a clear matter of international law.

Query: Has the Trump Administration issued as yet it National Security Strategy? I think it's been too soon. But recall George W's Sept./ Oct.? 2002 National Security Strategy that stressed preemptive strikes.